Symposium: After “universality” – Emphasizing territory and nationality in a world of increasingly competitive sovereign powers

KENNETH ANDERSON
JUL 25, 2017 4:17 PM

Kenneth Anderson is a professor of law at Washington College of Law, American University.

A striking feature of Kiobel II, the Supreme Court’s last excursion into the Alien Tort Statute prior to the current Jesner v. Arab Bank, PLC case, is how much Chief Justice John Roberts’ majority opinion and Justice Stephen Breyer’s concurrence (substantially a dissent) share in the way of two key background assumptions, one about politics and the other about law. These two assumptions together raise a puzzle as to why the court accepted Jesner and its limited question of whether the ATS permits suits against a corporate defendant.

The background political assumption in Kiobel II is that potentially deep, long-term changes are underway in the global political environment – indeed, in the post-WWII global political order – and the place of the United States within it. It’s a perception held to some degree, by my reckoning, by every one of the justices (with the possible exception of Justice Anthony Kennedy). It’s the perception of a global political environment characterized increasingly by jostling, prickly, competitive sovereigns jealous of their sovereign prerogatives – rising or resurgent great powers challenging the United States and parts of the global order it has championed and for which it has served, in effect, as guarantor over many decades.

The primary such great powers, of course, are China and Russia. They view courts of the United States, and such statutes as the ATS, with its apparent potential reach to any private actor in the world, as part of America’s political hegemony (to use a provocative term). That reach has included (up until Kiobel II) Chinese corporations and Russian oligarchs, irrespective of any contacts with the United States. Moreover, the causes of action under the ATS, the Supreme Court’s 2004 language in Sosa v. Alvarez-Machain requiring “definite content” and “acceptance among civilized nations” notwithstanding, turn on arguably vague and inarguably sharply contested norms of human rights, including the extent to which sovereigns can impose their interpretations on nationals and territory of other sovereigns. The political context of the ATS today can’t be elided, at least not given the apparent direction of global politics toward increasingly sharp sovereign relations.

The background legal assumption in Kiobel II follows on the political one. In a world in which competitive great powers increasingly joust for advantage, United States courts hearing cross-border legal disputes across all subject matters will have to pay far greater attention to the legal bases on which the U.S. government analyzes jurisdiction. The ATS is one example, but there are many others, in legal areas far from matters of international human rights. A threshold issue regarding the ATS, however, is a core basis for the exercise of jurisdiction by U.S. courts in the first wave of litigation following the statute’s revival in the 1980s – “universality,” which is thought to confer jurisdiction over conduct, principally related to human rights, recognized by the community of nations as of “universal concern.” Alleged conduct and causes of action that US courts have found to be of “universal concern” with respect to national court jurisdiction turn out to be, at least as far as some other increasingly powerful sovereigns are concerned, more like the presumptions of a hegemon increasingly in retreat.

If nothing else, the court’s retreat from “universality” as a jurisdictional basis in Kiobel II suggests that the justices are not unaware or indifferent to the perception of changes in America’s role, power and authority in the world. Such a perception might not alter the outcomes of jurisdictional disputes directly, but it might shift the doctrinal terrain on which such disputes are argued away from “universality” to the more quotidian categories of territory and nationality – what could be called the “workhorses” of jurisdiction.

Roberts’ majority opinion in Kiobel II turned on the domestic-law presumption against extraterritoriality, applied to the ATS. Though a doctrine in domestic law, the presumption is, by implication, a nod to limits on the legitimate extrusion by U.S. courts into a world containing many sovereigns jealous of their prerogatives. Breyer’s quasi-dissent offered, for its part, three different grounds for accepting ATS cases. The three are noteworthy in that they (more or less) track bases in customary international law regarding the “prescriptive jurisdiction” of a state. The first two of Breyer’s grounds are what one would expect: The tort occurred on U.S. territory or the defendant is a U.S. national.

The third, however, is the most striking from the standpoint of international jurisdiction, given that it addresses conduct that on its face seems fall into the jurisdictional category of “universal concern” – torture, for example. Rather than call directly upon the “universality” basis of jurisdiction, though, Breyer’s third test frames these universal human-rights values as distinctly American interests. Why does it matter? Because framing an important human rights matter – torture, genocide, etc. – as a distinctly American interest offers an escape from the increasingly sharp international arguments over what conduct is of “universal concern” and to what extent one sovereign can enforce limits on such conduct against another. The permissible international bases of jurisdiction include, beyond territoriality and nationality, certain (though much more limited) bases of jurisdiction that under some circumstances permit the exercise of extraterritorial jurisdiction by a state for the purpose (among others) of protecting its important “interests.”

The “protective principle,” for example, allows a state to assert jurisdiction to protect its “vital” interests even extraterritorially and over non-nationals. If an American value – the norm against torture, for example – can be reframed as a vital American interest, and even more if it is conjoined to a further limiting requirement that there be some minimum link between the alleged conduct or perpetrator and the United States (bank accounts of an alleged torturer, for example, held in the U.S.), then ATS jurisdiction could be asserted, bypassing the debate over “universality.”

It has been noted many times that both Roberts’ “touch and concern” test and Breyer’s “American values-as-interests and some form of contact with the US” test offer enough room through which to drive a large truck. That aside, each test is noteworthy both for avoiding “universality” as a jurisdictional category for the ATS, and for emphasizing instead one of the other jurisdictional bases, territoriality and nationality most of all. (I leave aside important doctrinal differences between “prescriptive” and “adjudicative” jurisidiction.)

But if that’s the case, then Jesner is a puzzle. If the political prudence of the Supreme Court is leading it, at least in a diffuse way, toward making the extraterritorial reach of U.S. courts less capacious than a decade or two ago, especially in cases of human rights, why take a case in which one possible outcome opens (or keeps open) the door of the ATS to one important class of defendants – corporations?

It won’t do, I believe, to answer that the Supreme Court, in holding for corporate liability in Jesner, would be confident that the prudential discretion of the lower courts, supported by briefs or declarations by the executive branch as to political or foreign-policy concerns, would suffice in the case of foreign corporations. Even if one believes generally that the executive’s concerns are properly considered by the lower courts in ATS cases, part of the problem in increasingly sharp contests of sovereignties arises from legal uncertainties as to whether foreign defendants, especially corporations, will be subject to an inquiry at all. It’s hard for me to believe that the justices are not at least thinking about Chinese corporations getting sued under the ATS over their subsidiaries’ labor or environmental practices in Africa.

In that regard, perhaps the best way to see Jesner and its likely acceptance of corporate liability is as a mechanism by which the Supreme Court continues a process of “de-internationalizing” and “de-universalizing” the ATS – turning it from something that might be called “American faux-international law of universal jurisdiction” into a far more accurate characterization: plain old American law. Maybe it’s what I’ve sometimes called American “law of the hegemon,” maybe overreaching, maybe not – but it’s not international law. Any argument about its overreach does not turn on seeing it as international law or as a domestic statute carrying out international law. American tort law applies to corporations; this is a domestic U.S. tort statute, so it applies to corporations foreign and domestic. That’s Jesner’s role in revamping the ATS as ordinary domestic law – of course it applies to corporations, and whether international law recognizes corporations as potential perpetrators of international crimes, or even has a concept of civil tort, is neither here nor there.

Jesner has to be conjoined to the requirements of Kiobel II; it doesn’t stand alone. Kiobel II requires that ATS claims be analyzed under international law categories of permissible jurisdiction by a state. Primary among those international law doctrines are the “workhorse” categories of territory and nationality – not simply waving one’s hands and proclaiming universality. Moreover, if the Supreme Court has the sort of concern for political prudence this post has urged, Kiobel II means not permitting (from the standpoint of many other states, including many American friends) too-clever-by-half legalisms to find ever-diminishing contacts as satisfying “touch and concern” or, alternatively, ever-expanding lists of American “values” as constituting, for jurisdictional purposes, vital American “interests.”

This post has spent more time talking about Kiobel II than about Jesner. This makes sense, however, because how one views the possible class of ATS defendants depends in large part upon the larger context of all the other jurisdictional predicates, the moving jurisdictional parts, of the ATS. Meanwhile, nothing about the ATS and its possible evolution would be entirely surprising; the lack of predictability is one indicator of the problems plaguing ATS jurisprudence. I myself, just to be clear, believe the Supreme Court should find against the concept of corporate defendants under the ATS. Moreover, with respect to the possible tests found in the opinions in Kiobel II, I would go with Justice Samuel Alito’s bright-line test requiring that domestic U.S. conduct constitute the international law violation. I don’t think either of these outcomes is very likely, in Jesner or beyond. It seems to me, however, that Jesner, Kiobel II, and other jurisdiction-drive cases will gradually give rise to the Supreme Court’s developing a much more demanding jurisdictional inquiry in cross-border cases of all kinds, not just cases involving the ATS. And that evolution will result at least partly from the pressure of increased sovereign competition and conflict in international politics.